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Immigrant & Refugee Appellate Center, LLC | www.irac.net U.S. Department of Justice Executive Office for Immigration

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

Wilkes, Garrett James GARRETT WILKES LAW, PLLC 3230 E. Broadway RD #C-150 Phoenix, AZ 85040

Name: BELMAN-CANO, JOSE CRUZ

5107 leesburg Pike, Sulle 2000

Falls Church. Virgm1a

22041

OHS/ICE Office of Chief Counsel - AUR 12445 East Caley Avenue Centennial, CO 80111-5663

A 057-433-239

Date of this notice: 9/21/2017

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

decision and order in the above-referenced case. Sincerely, Enclosure Panel Members: Pauley, Roger Greer, Anne J.

Enclosure

Panel Members:

Pauley, Roger Greer, Anne J. Cole, Patricia A.

Cynthia L. Crosby

Deputy Chief Clerk

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished/index

Cite as: Jose Cruz Belman-Cano, A057 433 239 (BIA Sept. 21, 2017)

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U.S. Department of Justice

Executive Office for Immigration Review

Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

File:

A057 433 239 - Aurora, CO

Date:

SEP 21 2011

In re:

Jose Cruz BELMAN-CANO

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT:

ON BEHALF OF OHS:

Garrett James Wilkes, Esquire

Christine L. Longo Assistant Chief Counsel

APPLICATION:

Termination of proceedings

The Department of Homeland Security (OHS) appeals from the Immigration Judge's January 31, 2017, decision tenninating removal proceedings. The respondent has not responded to the appeal. 1 The appeal will be dismissed.

We review findings of fact, including credibility findings, for clear error. 8 C.F.R. § 1003.l(d)(3)(i). We review questions of law, discretion, or judgment, and all other issues de novo. 8 C.F.R. § 1003.l(d)(3)(ii).

On September 7, 2016, the respondent was convicted of providing a false statement in connection with the acquisition of a firearm in violation of 18 U.S.C. § 924(a)(l)(A) (l.J. at 2; Unmarked Exh. (OHS Evidence Submission, filed on December 13, 2016)). The only issue on appeal is whether the Immigration Judge properly determined that the respondent's conviction does not constitute a conviction for a firearms offense under section 237(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(C), which renders the respondent removable (U at 2-5).

On appeal, the OHS argues, inter alia, that the Immigration Judge erred in determining that the respondent's conviction under 18 U.S.C. § 924(a)(l)(A) did not trigger removability pursuant to section 237(a)(2)(C) of the Act, given the broad application of the firearms offense as a ground of removability (DHS's Brief at 4-10). We disagree.

18 U.S.C. § 924(a)(l)(A) provides, in relevant part, that a person violates the ·statute if he or she "knowingly makes any false statement or representation with respect to the information required [] to be kept in the records" of a federally-licensed firearms dealer. Section 237(a)(2)(C) of the Act provides the following:

Section 237(a)(2)(C) of the Act provides the following: 1 The record reflects that the respondent was

1 The record reflects that the respondent was released from custody on April 13, 2017.

Cite as: Jose Cruz Belman-Cano, A057 433 239 (BIA Sept. 21, 2017)

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Immigrant & Refugee Appellate Center, LLC | www.irac.net A057 433 239 Any alien who at any

A057 433 239

Any alien who at any time after admission is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device (as defined in section 92 l (a) of title 18, United States Code) in violation of any law is deportable.

Pursuant to the categorical approach, the Board analyzes "whether the elements of the statute of conviction are the same as or narrower than those of the generic offense."

Matter of Francisco-Alonzo, 26 I&N Dec. 594, 596-97 (BIA 2015) (citing Descamps v. United States, 133 S.Ct. 2276, 2281 (2013)). While this matter was pending on appeal, we issued a precedential decision, Matter of Flores-Abarca, 26 I&N Dec. 922 (BIA 2017), recognizing the broad scope of firearms offenses under section 237(a)(2)(C) of the Act. However, the respondent's statute of conviction, even if broadly construed as in Matter ofFlores-Abarca, does not constitute a firearms offense. 18 U.S.C. § 924(a)(l )(A) has been held to apply to federally-licensed firearms dealers who falsify their own records, e.g., to conceal the fact that a buyer purchased more than one handgun in a 5-day period. See, e.g., United States v. Al-Muqsit,

191

F.3d 928, 932 (8th Cir. 1999), vacated in part on other grounds, United States v. Logan,

210

F.3d 820 (8th Cir. 2000) (en bane); see also United States v. Carney, 387 F.3d 436, 441

' (6th Cir. 2004).2 Such conduct, even if section 237(a)(2)(C) contained a "relating to" phrase, which it does not, would not fall within that provision, which involves purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying (or as in Matter of Flores-Abarca, transporting}, a firearm. While a dealer's falsification of records is likely designed to further his

business in selling firearms, it does not directly involve any of the acts encompassed in section 237(a)(2)(C) of the Act.

the acts encompassed in section 237(a)(2)(C) of the Act. Thus, upon de novo review, we affirm

Thus, upon de novo review, we affirm the Immigration Judge's determination that the respondent's conviction for providing a false statement in connection with the acquisition of a firearm in violation of 18 U.S.C. § 924(a)( l )(A) is not a categorical firearms offense under section 237(a)(2)(C) of the Act (U at 2-5).3

2 We note that the scope of 18 U.S.C. § 924(a)( l }(A) in the context of the firearms offense as a ground of removability has not been directly addressed by the United States Court of Appeals for the Tenth Circuit, in whose jurisdiction this case arises. See generally United States v. Prince,

647 F.3d 1257, 1268 (10th Cir.2011) (stating that under § 924(a)( l }(A}, the government must

establish the following elements beyond a reasonable doubt: (1) the firearms dealer was a federally

licensed firearms dealer when the offense occurred; (2) the defendant made a false statement in a

record that federal law requires the dealer to maintain; and (3) the defendant made the false statement knowing it was false).

3 In light of our disposition, we decline to address any other issues raised by the DHS on appeal.

See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating that "(a]s a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.").

2

Cite as: Jose Cruz Belman-Cano, A057 433 239 (BIA Sept. 21, 2017)

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Immigrant & Refugee Appellate Center, LLC | www.irac.net A057 4'33 239 Accordingly, the following order will

A057 4'33 239

Accordingly, the following order will be entered.

ORDER:

The appeal is dismissed.

!h-- u� ' FOR THE BOARD
!h-- u�
'
FOR THE BOARD

Board Member Patricia A. Cole respectfully dissents. I would sustain the DHS appeal and remand these proceedings. Given the broad application of the firearms offense as a ground of removability, the record must be further developed to determine whether the respondent has established that there is not a realistic probability that individuals may be prosecuted under

18 U.S.C. § 924(a)(l)(A) for conduct beyond the generic definition of a firearms offense set forth

in section 237(a)(l)(C) of the Act.

3

Cite as: Jose Cruz Belman-Cano, A057 433 239 (BIA Sept. 21, 2017)

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I.

,

& Refugee Appellate Center, LLC | www.irac.net I. , • • UNITED STATES DEPARTMENT OF JUSTICE

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT 3130 NORTH OAKLAND STREET AURORA, CO 80010

In The Matter ()f1

I n T h e M a t t e r () f 1 ) Date1

)

Date1 sJra�' '311 �17

Date1 sJra�' '311 �17

 

)

BELMAN-CANO, Jose Cruz

 

)

 

)

IN REMOVAL

)

PROCEEDINGS

 

Respondent.

)

 

)

DETAINED

File No.:

A# 057-433-239

)

CHARGE:

Section 237(a)(2)(C) of the Immigration and Nationality Act (INA, or Act), as amended, as in alien who at any time after admission, was convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, in violation of any law, any weapon, part, or accessory which is a

firearm or ciesiructlve civlce, as defmd in ection 92i(a) of tltie 18, United States Code.

ON BEHALF OF THE RESPONDENT:

Pro se

ON BEHALF OF THE DEPARTMENT:

Christine Longo, Assistant Chief Counsel Office of the Chief Counsel U.S. Department of Homeland Security 12445 East Caley Avenue Centennial, CO 80 l 11

WRITTEN DECISION AND ORDER OF THE IMMIGRATION JUDGE

Procedural History

Jose eruz Belman-Cano (Respondent) is a twenty-five-year-old native and citizen of Mexico. Respondent was admitted to the United States on November 22, 2004, as a child of an alien resident. On September 7, 2016, Respondent pled guilty to section 924(a)(l)(A) under title 18 of the United States Code (USC), for knowingly providing false information to an individual licensed under the federal firearms statutes. The Department of Homeland Security (OHS, or the Department) alleges that Respondent's conviction constitutes a certain firearm offense, as described in INA section 237(a)(2)(C). Based on this allegation, OHS served Respondent with a

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.•
.•

BELMAN-CANO, Jose Cruz A057 433 239

.)

Notice to Appear (NTA), charging him as removable from the United States. The Department filed the NTA on December 12, 2016, thereby vesting jurisdiction with the Court.

As the Court finds the Department has not met its burden to prove the charge of removability by clear and convincin evidence, the Court will, therefore, terminate removal proceedings against Respondent. INA§ 240(c)(3)(A).

II. Termination of Removal Proceedings

An alien can be charged with an applicable ground of removability under section 237(a) of the INA; however, the Department has the burden of proving the charge of removability by clear and convincing evidence. INA § 240(c)(3)(A). Here, the Department avers that

Respondent's conviction under 18 U.S.C§ 924(a)( l)(A) is a certain firearm offense as described in INA section 237(a)(2)(C), rendering Respondent removable. There is no question that

Respondent was convicted for an offense under 18 U.S.C § 924(a)(l )(A), for which he

incarcerated for one year. Department of Homeland Security Submission of Documents at 1. However, the Department must also prove by clear and convincing evidence that a conviction under 18 U.S.C § 924(a)(l )(A) is a certain firearm offense that warrants removal under INA section 237(a)(2)(C). The Court must determine whether the elements of the crime of conviction match the elements under the generic, statutory crime described in the INA. Taylor v. United States, 495 U.S. 575, 600 (1990).

was

In applying the categorical approach, the Court must compare the statute of conviction

�g th� ����ri� ��m! o

cy �rim�? w hi�h , h r . j� thfir�� s pr<;> v !�!<?I! i n JNA �t!9!}

fir�� s pr<;> v !�!<?I! i n JNA �t!9!} 237(a)(2)(C). if the statute of conviction has

237(a)(2)(C). if the statute of conviction has the same eiements as the generic offense, or if the minimum conduct that has a realistic probability of prosecution under the statute fits within that generic offense, the conviction is a categorical match for immigration purposes. Descamps v. US., 133 S. Ct. 2276, 2283 (2013); see also Matter of Chairez, 26 I&N Dec. 819, 823 (BIA 2016). In order to determine the minimum conduct prosecuted, there must be a "realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime." Moncrieffe v. Holder, 133 S. Ct. 1678, 1684-85

(2013); see also Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007); see also Matter ofSilva­

Trevino, 26 I&N Dec. 826, 831 (BIA 2016). However, if the statute is defined more broadly than the generic offense, the conviction is overbroad and not a categorical match. Moncrieffe, 133 S. Ct. at 1685.

In a limited set of cases, the Court uses the modified categorical approach to determine whether a respondent was convicted of violating a divisible statute. The Court can look to the record of conviction to determine which of the divisible elements of the statute formed the basis

feF tha eenvietien. §ee Mathis v. United States, 136 6. et. 2243, 2233 (2616) (holding that the

modified categorical approach can only be used to determine which elements played a part in the defendant's conviction); see also Matter of lntrocaso, 26 I&N Dec. 304, 308 n.4 (BIA 2014) ("the record of conviction includes the charging document (indictment, complaint, or information), jury instructions, written plea agreement, transcript of plea colloquy, judgment of conviction, jury verdict, a comparable judicial record, and any explicit factual finding by the trial judge to which the defendant assented"); accord Shepherd v. United States, 544 U.S. 13, 25

(2005).

2

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.•
.•

_)

BELMAN-CANO, Jose Cruz AOS7 433 239

| www.irac.net .• _) BELMAN-CANO, Jose Cruz AOS7 433 239 In this case, Respondent was convicted

In this case, Respondent was convicted of violating 18 U.S.C§ 924(a)(l)(A), which penalizes:

knowingly mak[ing] any false statement or representation with respect to the information required by this chapter to be kept in the records of a person licensed under this chapter or in applying for any license or exemption or

reuer rrttffi t.:liEliltilif1 Hmiet the ftt9Yiei�tt11 t;tf this ehfll'ttet:

The statute is contained in chapter 44 of title 18 of the United States Code, which is entitled "Firearms." The Court, therefore, makes the inference that the reference to "a person licensed under this chapter" is referring to an individual licensed, in some way, relating to firearms.

The Department avers that Respondent's conviction mandates that he is removable for having been convicted of a firearms offense as described in INA§ 237(a)(2)(C), which states:

Any alien who at any time after admission is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing or carrying, or of attempting or conspiring to purchase, sell, offer for sale, use, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device in violation of any law is deportable.

-

-

device in violation of any law is deportable. - - - . To determine whether a

-

device in violation of any law is deportable. - - - . To determine whether a

.

device in violation of any law is deportable. - - - . To determine whether a

To determine whether a conviction under 18 U.S.C§ 924(a)( l )(A) renders Respondent removable, the Court first must compare the two statutes, to determine if 18 U.S.C§ 924(a)(l)(A) has the same elements of the generic offense, INA§237(a)(2)(C). Descamps v. US., 133 S. Ct. 2276, 2283 (2013); see also Matter o/Chairez, 26 l&N Dec. 819, 823 (BIA 2016). In order to do this, the Court must decide if 18 U.S.C§924(a)( l )(A) is divisible. The Court concludes that the statute is indivisible, as knowingly making a false statement is a "single set of elements to define a single crime." Mathis 136 S. Ct. at 2248 (describing when a statute is indivisible). Therefore, the Court must then "[line] up that crime's elements alongside those of the generic offense and see if they match." Id. If the crime sweeps more broadly than the generic crime, the crimes are not a categorical match. Id.

The generic statute in INA § 237(a)(2)(C) lists the types of laws an individual may be convicted under that would render him deportable under the section: laws for purchasing, selling, offering for sale, exchanging, using, owning, possessing or carrying any weapon, part, or

owning, possessing or carrying any weapon, part, or �@@ssaey whl@tl ts a. ti*1Sa.ffll aF a�sffUpJiw

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aforementioned actions. However, the INA is silent as to whether a person is deportable for

providing false information to an individual licensed under a firearms statute.

237(a)(2)(C) describes a broad range of conduct, the Court finds that conduct constituting a conviction under 18 U.S.C§ 924(a)( l )(A) is not a categorical match, as it sweeps more broadly than the litany of circumstances enumerated in the INA. The Court finds that section 924(a)(l)(A) does not mention that the offensive conduct has to be connected to the purchase or sale of a gun-the only reference to firearms, other than the fact that the statute appears in a chapter titled "firearms," is to the licensed individual itself. The statute does not limit the

While INA §

3

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Immigrant & Refugee Appellate Center, LLC | www.irac.net _) BELMAN-CANO, Jose Cruz AOS7 433 239 "providing

_)

BELMAN-CANO, Jose Cruz AOS7 433 239

"providing of false information" to merely the purchase and sale of firearms, but leaves the

conduct open to any instance in which false information is given to a licensed individual. Additionally, the Ninth Circuit has addressed the scope of 18 U.S.C § 924(a)( l )(A), stating that

the statute "unambiguously describes which false statements and representations it prohibits­

simply those that are made with respect to information that is required to be kept by federally

licensed firearms dealers." US. v. Johnson, 680 F.3d 1140, 1144 (9th Cir. 2012). The court in Johnson determined that Congress acted intentionally in leaving the statute vague by not

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.

Furthermore, the Tenth Circuit, in a case regarding jury instructions, affirmed a

conviction under 18 U.S.C §924(a)( l )(A) for providing a false address, and approved jury

instructions that only required the government to prove that the defendant made a false

statement, not necessarily one in relation to the sale or purchase of a firearm. US. v. Prince, 641

F.3d 1257, 1266 (10th Cir. 2011).

o f a firearm. Id.

The Department seemingly argues that the only instance in which an individual could be

convicted under 18 U.S.C § 924(a){l )(A) is if the individual was attempting to acquire a firearm.

However, the Court is not convinced by this argument. The Department, in its Brief in Support

of Removability, assumes that "in order to make a false statement or representation to a firearms

dealer under 18 U.S.C § 924(a)( l ){A), one must be attempting to purchase a firearm."

Department Brief at 4. However, the Department has not given any examples to support this

conclusion, and has not shown through clear and convincing evidence that the federal statute

solely serves to prosecute conduct described in the INA.

Th� Dspru=tment af§B argue§ that tli@ laclt af a E:futmal'� �ieffiettt felatittg ootttluct

described in 18 U.S.C. § 924(a)( l )(A) to the actual purchase of a firearm does not undermine the

offense as one considered under the INA. The Department determines this by arguing that the

offense "necessarily" involves the purchase of a firearm. Department Brief at 5. Furthermore, the

Department avers that the INA refers to "any law" with regards to purchasing a firearm, which should include the statute in question. Id. The Department cites Kawashima v. Holder, 132 S.

Ct. 1166, 1172 (2012), in which the respondents were convicted of ''willfully making any

statement

Department argued that this conviction made the respondents deportable for committing an

aggravated felony that involves "fraud or deceit" under INA § 10 l (a)(43)(L)(i). Id at 1172. The

Court, in Kawashima, was able to compare the conduct required by the statute of conviction of

providing statements that were not ''true and correct" with the generic meaning of "fraud and

deceit," and found the statutes to be a categorical match. Id Here, the Court has no touchstone, no generic definition the Court can reference to, as the Court did in Kawashima. There is no language within the federal statute that lets the Court infer that Respondent's conduct under 18

which

he does not believe to be true and correct" under 26 U.S.C. § 7206(1). The

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convinced that the statute of conviction at hand "necessarily" involves only the purchase of the

firearm, and the comparison to the case at hand does not directly correlate with the issues in

Kawashima.

Furthermore, the Department argues that if the Court looks at Respondent's record of conviction and underlying documents in support of Respondent's conviction, the Court will find that Respondent was attempting to purchase firearms when he presented false information.

However, this is beyond the Court's authority-it is clear that the court can only look at the

4

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Immigrant & Refugee Appellate Center, LLC | www.irac.net _) BELMAN-CANO, Jose Cruz A057 433 239 underlying

_)

BELMAN-CANO, Jose Cruz A057 433239

LLC | www.irac.net _) BELMAN-CANO, Jose Cruz A057 433 239 underlying facts of the case when

underlying facts of the case when applying the modified categorical approach, and only then in order to determine if a statute consists of elements or means. Mathis 136 S. Ct. at 2252 (stating a judge can only look to the elements of the offense, not to the facts of the defendant's conduct). The Court cannot use the factual particulars of Respondent's conviction to guide its categorical analysis; doing so would be the legal equivalent of putting the cart before the horse, as it were.

As Respondent's statute of conviction could apply to conduct in a broader fashion than

the generie erime deseribed in INA; the Geurt finds that the Department has net met its hl:lrElen in

proving by clear and convincing evidence that Respondent is removable as charged. Furthermore, the Department cannot show that Respondent has been convicted an offense that requires mandatory detention under INA § 236(c).

Accordingly, the Court will enter the folloWing order:

ORDER

Accordingly, the Court will enter the folloWing order: ORDER IT IS HEREBY ORDERED that Removal Proceedings

IT IS HEREBY ORDERED that Removal Proceedings be TERMINATED, without prejudice to either party.

IT IS FURTHER ORDERED that appeal is RESERVED on behalf of both parties.

ORDERED that appeal is RESERVED on behalf of both parties. I-� I - \I Date �[(�

I-� I

- \I

Date

�[(� AUSOn:e C/7� Immi at' n Judge
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5

that appeal is RESERVED on behalf of both parties. I-� I - \I Date �[(� AUSOn:e